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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 5, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NET.B@NK, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C> <C>
GEORGIA 6712 58-2224352
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification
incorporation or organization) Classification Code Number) No.)
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950 NORTH POINT PARKWAY
SUITE 350
ALPHARETTA, GEORGIA 30005
(770) 343-6006
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
D. R. GRIMES
950 NORTH POINT PARKWAY
SUITE 350
ALPHARETTA, GEORGIA 30005
(770) 343-6006
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
COPIES TO:
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<S> <C>
WALTER G. MOELING, IV, ESQ. ALLEN L. WEINGARTEN, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP MORRISON & FOERSTER LLP
191 PEACHTREE STREET, N.E. 1290 AVENUE OF THE AMERICAS
ATLANTA, GEORGIA 30303 NEW YORK, NEW YORK 10104-0012
(404) 572-6600 (212) 468-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /X/ 333-69587
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE:
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE PRICE REGISTRATION FEE
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Common Stock, $.01 par value 494,500 $46.00 $22,747,000 $6,460
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(1) Includes 64,500 shares that may be sold to the over-allotment option
granted to the Underwriters.
INCORPORATION BY REFERENCE OF REGISTRATION STATEMENT ON FORM S-3,
REGISTRATION NO. 333-69587
Net.B@nk, Inc. (the "Company") hereby incorporates by reference into this
Registration Statement on Form S-3 in its entirety the Registration Statement on
Form S-3 (Registration No. 333-69587) declared effective on February 4, 1999 by
the Securities and Exchange Commission (the "Commission"), including each of the
documents filed by the Company with the Commission and incorporated or deemed to
be incorporated by reference therein.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia
on February 4, 1999.
NET.B@NK, INC.
BY: /S/ D.R. GRIMES
-----------------------------------------
D. R. Grimes
Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities on February
4, 1999.
SIGNATURE TITLE
- ------------------------------ ---------------------------
/s/ D.R. GRIMES Chief Executive Officer
- ------------------------------ (Principal executive
D.R. Grimes officer) and Director
Chief Executive Officer
* (Principal financial and
- ------------------------------ accounting officer) and
Robert E. Bowers Director
* Chairman of the Board
- ------------------------------
T. Stephen Johnson
* President, Chief Operating
- ------------------------------ Officer and Director
Donald S. Shapleigh
* Director
- ------------------------------
Ward H. Clegg
* Director
- ------------------------------
J. Stephen Heard
* Director
- ------------------------------
Robin C. Kelton
* Director
- ------------------------------
John T. Moore
* Director
- ------------------------------
Thomas H. Muller, Jr.
* Director
- ------------------------------
H. Bryce Solomon, Jr.
* Director
- ------------------------------
W. James Stokes
* Director
- ------------------------------
Mack I. Whittle, Jr.
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*By: /s/ D.R. GRIMES
--------------------------------------
D.R. Grimes
Attorney-in-Fact
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EXHIBIT 5.1
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET N.E.
SUITE 1600
ATLANTA, GEORGIA 30303
(404) 572-6600
FEBRUARY 4, 1999
Net.B@nk, Inc.
950 North Point Parkway
Suite 350
Alpharetta, Georgia 30005
RE: REGISTRATION OF 494,500 SHARES OF COMMON STOCK;
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel to Net.B@nk, Inc., a Georgia corporation (the
"Company") in connection with the registration under the Securities Act of 1933,
as amended, pursuant to the Company's Registration Statement on Form S-3 (the
"Registration Statement"), of 494,500 shares (the "Shares") of common stock,
$.01 par value ("Common Stock"), of the Company.
In this capacity, we have examined the Registration Statement in the form
filed by the Company with the Securities and Exchange Commission (the
"Commission") on December 23, 1998 and as amended on January 15, 1999 and
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, agreements, documents and other instruments of the
Company relating to the authorization and issuance of the Shares and such other
matters as we have deemed relevant and necessary as a basis for the opinion
hereinafter set forth.
In conducting our examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such documents.
Based upon the foregoing, and in reliance thereon, and subject to the
limitations and qualifications set forth herein, we are of the opinion that the
Shares, when issued and delivered against payment therefor in accordance with
the terms of the Underwriting Agreement, will be legally and validly issued,
fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm under the heading "Legal
Matters" in the Prospectus which is incorporated by reference in the
Registration Statement. We further consent to the use of this opinion as an
exhibit to applications to securities commissioners of various states of the
United States for registration or qualification of the States under the
securities or "blue sky" laws of such states.
Very truly yours,
/s/ POWELL, GOLDSTEIN, FRAZER & MURPHY
LLP__
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Net.B@nk, Inc. on Form S-3 of our report dated February 5, 1998, incorporated
by reference in the Annual Report on Form 10-K of Net.B@nk, Inc. for the year
ended December 31, 1997, and to the use of our report dated December 16, 1998,
appearing in the Prospectus that is part of Registration Statement No. 333-69587
which is incorporated by reference herein. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
February 4, 1999
